Opinion
6 Div. 34.
June 7, 1928.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
George R. Carter and W. A. Weaver, both of Birmingham, for appellant.
Forfeitures are not favored, and will not usually be permitted except where the failure to perform is willful or intentional. 21 C. J. 100; Barton v. Broyles, 212 Ala. 658, 103 So. 854; 1 Pomeroy, 495. This contract will be deemed to be in the nature of a mortgage. Barton v. Broyles, supra; Hawkins v. Coston, 214 Ala. 135, 107 So. 50. Appellee retained the unpaid notes as well as the contract, and demanded full payment thereunder. There was, therefore, no forfeiture, as it would be inconsistent for appellee to insist on full payment and at the same time declare a forfeiture. Parker v. Houston, 215 Ala. 346, 110 So. 613.
Drennen Burns, of Birmingham, for appellee.
There was no oppression in this case. Appellee gave appellant every opportunity to pay the balance due, and appellant never offered to do equity. The case of Barton v. Broyles, 212 Ala. 658, 110 So. 854, does not apply.
The complainant rests his case on the doctrine:
"That, where the agreement secured is simply one for the payment of money, a forfeiture either of land, chattels, securities or money, incurred by its nonperformance, will be set aside on behalf of the defaulting party, or relieved against in any other manner made necessary by the circumstances of the case, on payment of the debt, interest, and costs, if any have accrued, unless by his inequitable conduct he has debarred himself from the remedial right, or unless the remedy is prohibited, under the special circumstances of the case, by some other controlling doctrine of equity." 1 Pom. Eq. Juris. (4th Ed.) § 450, p. 854.
In Barton v. W. O. Broyles Stove Furniture Co., 212 Ala. 658, 103 So. 854, the complainant had purchased a lot of household goods under a conditional sale contract, stipulating that the purchase money should be paid in installments, and providing for a forfeiture of the payments made as rent for the use of the property in case of a failure to pay, the vendor retaining the legal title as a security for the debt. After the purchaser had paid all but a small balance of the debt, he made default, and the vendor, in the absence of the purchaser, entered upon his premises, took possession of the property, and, as the record in that case shows, though this does not appear from the report of the case, immediately sold the property to a third person without notice or an opportunity to pay the balance due, though he offered to do so before filing his bill. There the vendor, having the legal right to declare a forfeiture, exercised the right so as to work injustice and oppression.
"The jurisdiction to relieve against forfeitures is exercised upon the principle that a party having a legal right shall not be permitted to avail himself of it for purposes of injustice or oppression. The jurisdiction is regarded as a dangerous one, not to be extended. It does not extend so far as to authorize a court of equity to disregard and set aside the valid stipulations of the parties upon the performance of which their rights depend." 21 C. J. 100, § 76; Douglas v. Knickerbocker L. Ins. Co., 83 N.Y. 492; Kann v. King, 204 U.S. 43, 27 S.Ct. 213, 51 L.Ed. 360; Pacific States Savings, etc., Co. v. Green, 123 F. 43, 59 C.C.A. 167.
And where, as here, there is no controversy as to the balance due under the contract, and a reasonable opportunity is afforded for payment or tender, a tender of the amount due is a prerequisite of the right to invoke the jurisdiction of a court of equity to relieve from the forfeiture. 21 C. J. 100, § 76; Sheets v. Selden, 7 Wall. (U.S.) 416, 19 L.Ed. 166; Pershing v. Feinberg, 203 Pa. 144, 52 A. 22; Wender Blue Gem Coal Co. v. Louisville Property Co., 137 Ky. 339, 125 S.W. 732; note, 16 A.L.R. 448; Texas Co. v. Pensacola Maritime Corporation (C.C.A.) 279 F. 19, 24 A.L.R. 1336.
In the case at bar, the complainant, in addition to his failure to pay some of the notes as they matured, violated the contract by removing the car out of Jefferson county without the knowledge or consent of the vendor, requiring extra effort and expense to locate and repossess it.
Under these circumstances and the stipulations in the contract, the vendor acted within its legal rights in taking possession of the car; yet this was done with the consent of complainant. The car was held, as the evidence shows, from the 28th of May, 1925, until the 11th day of the following July, subject to the right of complainant to pay the balance due and obtain the car, with notice to Carter that, if he failed to pay the balance due, on or before the last date, the car would be sold, in accordance with the terms of the contract, free from all claims of the complainant. The car was in fact held until October 3, 1925, before it was sold, and the evidence shows that the defendant was willing at all times before it was sold to accept payment from complainant, and that he was so advised. Notwithstanding this, the complainant neither tendered nor offered to pay the balance due, though he made some effort to procure a purchaser and to borrow money on the car with the defendant's consent.
All the notes had matured on June 23, 1925, long before the car was sold, and the evidence shows that the property involved is of a class that rapidly depreciates in value.
Under these circumstances, it cannot be said that the conduct of the defendant was oppressive or attended with circumstances showing injustice toward the complainant.
We are therefore of opinion that relief was properly denied, and the bill dismissed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, and THOMAS, JJ., concur.